Last week the law school hosted the important conference "Intellectual Property in the International Arena: WIPO Comes to Stanford." Along with Richard Owens from WIPO, Professor Pam Samuelson from Berkeley, and Scott Martin from Paramount Pictures, I participated in Professor Paul Goldstein's copyright panel entitled "Copyright in a Networked World – What's next on the agenda?" Here's the text of my informal remarks, more or less as delivered:
The title of this panel is very appropriate, especially the use of the phrase "Networked World." I think that is the key to thinking about what WIPO should be looking at for the future: what kind of copyright system does the “Networked World” require?
The 1996 WIPO Treaties are often called the "Internet Treaties," but they really focused on updating copyright for the "Digital World," not necessarily the "Networked World." For example, the whole concept of intermediary liability and the role of ISPs, which is critically important to the Networked World, is only treated in the footnotes to the 1996 WIPO Treaties. Those treaties focused more on how copyright should be changed to address needs of digital products, but they did not really focus on the distribution network that the Internet would become.
So I want to take a few minutes today to talk about what the Networked World requires. These are just ideas for brainstorming, not solutions or proposals. But I will explain why I think they are important.
First, we should look at what the Networked World demands, not just for copyright but for all forms of commerce and communication. And one thing that is clear is that the Networked World demands speed and it demands scale. People now expect transactions to take place immediately, if not sooner, and likewise they expect access to information to help those transactions just as quickly.
And they expect the same speed and scale for copyright transactions, especially since the content itself can be digitized and transmitted immediately too. We see some of that in action today in the ease with which one can (legitimately) download a song, stream a movie or buy a digital book. But the needs of the system don’t end there. A blogger who wants to use a photograph expects that she should be able to find it and pay for its use in a matter of minutes. A web site creator who wants to register the copyright in her site expects the process to be completed online and very quickly.
You see this demand for speed and scale in the rise of Creative Commons. In addition to the content and substance of the licenses, one of the reasons for the widespread adoption of Creative Commons licenses by those in the Networked World is how easy it is to include one in your creative work online.
So I would submit that a copyright system optimized for the Networked World must be able to meet these very high speed and scale requirements, whether we like it or not.
And we are all familiar with many examples of where this goal of achieving network speed falls short – way short. Orphan works present perhaps the most glaring problem, and it is one of the reasons so much attention has been paid to that important issue over the years. The orphan works issue is a demonstration that more and more users are finding hard to locate basic information about copyright in materials they want to re-use.
So where does WIPO fit into all of this? One of the causes for copyright’s struggles in adapting to the Networked World flows from the international copyright system, specifically the ban on formalities. This ban has a lot of positive aspects, most importantly preventing needless barriers to authors and creators that might prevent them from enjoying copyright protection.
But in today’s world there’s also a downside. No formalities results in inadequate registration databases and other information sources that could help answer questions about who owns what, how to obtain a license, or even whether one is necessary. So a key part of the infrastructure for copyright in the Networked World – databases of rights information – doesn’t exist in a form necessary for that world.
Of course, lots of private registries and databases do exist – collective organizations use databases; online marketplaces for copyrighted works, like Corbis and Getty, create and use databases with ownership and licensing information; and there are some government-run registries, like the U.S. Copyright Office. And it’s a very good thing that WIPO is just about to complete a survey of member states on the voluntary registration systems they use. That will be a good start to understanding what kinds of systems we have.
But there is still a lot of work to do in developing such databases and integrating them into the architecture of networks and into the copyright legal system. As a demonstration of that gap, recall that the 1996 WIPO treaties included provisions on “rights management information” that were designed to support the private use of metadata and other copyright-related information. It is interesting to note, however, that these provisions have not played a major role in the important copyright law developments over the past 15 years.
This is shown by an example from the Google Books litigation. Buried in the proposed settlement is an effort to create a registry of books that can be used by ebook sellers and others. Now, Microsoft is on record as opposing the proposed settlement for many reasons, but the idea of creating a registry for book information is a good one. Microsoft has invested substantial resources working with publishers and other content owners seeking to develop such databases. It’s the kind of infrastructure that will be necessary to allow books to be bought, sold and licensed in the Networked World.
While the private sector has a very important role to play in developing such systems, it is also important that the basic ground rules and requirements for such registries be shaped in public, multilateral fora like WIPO and its member states, rather than in settlements of class actions by private parties motivated by self interest rather than the public interest.
So I’d suggest that WIPO start examining how the copyright system might enable and support the development of robust, efficient copyright information systems that everyone – owners, users, governments, and the public – can use to facilitate frictionless transactions related to copyrighted works. There are many possible ways to accomplish this. It should be open to all kinds of legal mechanisms – such as voluntary agreements, public-private partnerships, regulations and even statutory amendments – whatever might help create systems that serve the public interest in making copyright more accessible, more sensible and more effective in the Networked World.
That ends my brief presentation to the technocrats in the room. Coming from Microsoft and being here at Stanford in the heart of Silicon Valley, let me now distill it for those of you who are not only technocrats but also techies. Looked at in terms of copyright, the Digital World was perceived as a bug. The ease of copying led to rampant infringement that harmed creators. In contrast, again looked at in terms of copyright, I submit that the Networked World should be embraced as a feature. The ability to create new works and share them with a vast audience across a multitude of platforms via a network creates great opportunity for creators.
And for those of you who are techies, you know that a feature needs a good spec in order to provide a blueprint for its implementation. No one is in a better position than WIPO to help facilitate the writing of that spec and the creation of a robust copyright system for the Networked World.